Summary: Ms X complains that the independent appeal panel which dealt her appeal for a place for her daughter failed to consider all her evidence properly. She also complains that she was not told the appeal would be considered on written submissions only or that she send in further evidence after she submitted her appeal. We find there was no fault by the School or the appeal panel in these matters.

The complaint

1. Ms X complained that:
1. the independent appeal panel which dealt with her appeal for a place for her daughter failed to consider all her evidence properly; and
2. she was not told the appeal would be held on written submissions only rather than as an in-person hearing or that she could send in further evidence after she submitted her appeal.
2. As a result she says she did not have a chance to explain her case fully and the panel did not deal with her case fairly.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making by a council or an admission appeal panel, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided, including the appeal papers and clerk’s notes of the hearing. I considered relevant law and guidance on admission appeals.
7. Ms X and the School had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

School admission appeals – arrangements for appeal hearings

8. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
9. In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These temporarily amend the existing regulations and remained in force until 30 September 2022. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’.
10. I outline below key points from the School Admissions Code and School Admission Appeals Code. I have identified where the emergency regulations introduced a temporary change to the admission appeal rules.
11. Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
12. A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
13. The admission authority must provide appellants with written notice of the date of and arrangements for the hearing at least 14 days before the hearing date. The notice must include a deadline for submitting any further evidence that was not sent with the initial appeal. Admission authorities must inform appellants that any information or evidence not submitted by the deadline might not be considered at the appeal.
14. Under the temporary rules admission authorities could set new or revised reasonable deadlines about submitting evidence and for the clerk to send the relevant appeal papers to the appeal panel and parties. These deadlines could be set on a case by case basis and take account of the circumstances of each appeal case. All parties should be notified of deadlines “as soon as is reasonably possible”.
15. The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance in 2020 stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible.
16. The appeal panel could decide to hold the hearing remotely if it was satisfied that:
• the parties would be able to present their cases fully;
• each participant had access to video or telephone facilities allowing them to engage in the hearing; and
• the appeal hearing could be heard fairly and transparently in this way.
17. Where this was not possible, appeals could be conducted entirely based on written submissions. The guidance suggested a process for deciding appeals on this basis but said admission authorities and panels had to exercise their own judgement in each appeal to ensure parties were able to fully present their case.
18. For the panel to make a decision which is fair and transparent, they had to ensure the parties could fully present their case by written submissions. The emergency guidance suggested the following process:
• The admission authority’s representative and the parent should see each other’s written submission in advance and have an opportunity to send in questions. Both parties should be able to reply with answers to the questions and any further points they wish to make. They should see each other’s answers and have a chance to submit additional evidence if they wish, by a given deadline.
• The panel should meet by telephone or video conference, with the clerk, to consider all the information and reach a decision in the same way as set out in the Appeals Code.
19. In September 2021 the government amended the guidance to say:

“Face-to-face appeal hearings can now take place where the admission authority considers it is safe to do so, unless a participant needs to self-isolate after a positive test or government guidelines indicate it is not safe to do so.”

“In line with the temporary regulations, where a face-to-face appeal is not possible for a reason related to the incidence or transmission of COVID-19, the appellant should be offered a hearing by telephone or video conference wherever possible.”

20. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
21. The same conditions for deciding to hold remote hearings and the suggested process for written submission appeals applied as in the original guidance.
22. The guidance accompanying the emergency regulations urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.

School admission appeals - decision-making

23. When making the decision, panels must follow a two-stage decision making process. At stage one, the panel examines the decision to refuse admission. The panel must consider whether:
• the admissions arrangements complied with the requirements set out in the School Admissions Code;
• the admission arrangements were applied correctly; and
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
24. If a panel decides that admitting further children would prejudice the provision of efficient education or the efficient use of resources, they move to the second stage: balancing the arguments. The panel must balance the prejudice to the school against each appellant's case for their child to be admitted.
25. In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant's case outweighs the prejudice to the school . However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children.
26. The appeal panel must write to the appellant with its decision and the reasons for it. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel's decision.

Ombudsman guidance

In May 2020, the Ombudsman issued guidance for Councils, ‘Good administrative practice during the response to COVID-19’. This guidance stated that basic record keeping was vital during crisis working. It advised there should always be a clear audit trail of how and why decisions were made, particularly summarising reasons for departing from normal practice.

What happened

27. Ms X has a daughter, D, who was due to start secondary school in September 2022. Ms X applied for a place for D at Dartford Science and Technology College (‘the School’) in Year 7. The admission criteria are as follows:
1. Children in or previously in council care
2. Children with a sibling at the school at the time of entry
3. Health and special reasons for needing to attend the school
4. Nearness of the child’s home to the school.
28. There were 455 applications for 150 places. D’s application was considered in category 4. She did not get a place as she lived further away from the School than the last child offered a place in category 4.
29. Kent County Council (‘the Council’) runs the School’s appeals on its behalf.
30. In late March 2022 Ms X appealed against the decision refusing a place on the appeal form provided by the School. In her written appeal she said D was very keen to attend the School as she wanted to go to an all-girls school because her education had been disrupted in mixed schools previously. She felt the school suited D’s needs as she loved science subjects. Also Ms X explained she herself suffered from panic attacks and anxiety. She said this would make it difficult for her to drive D to the school where she had been offered a place because of the route which took in major roads.
31. The appeal form explained that under the emergency regulations the independent appeal panel was “satisfied that it is not possible to offer remote access for appeals for this school and intend to make their decision based on the written evidence submitted only”. It referred the appellant to the ‘FAQ’ section of School’s website for further information.
32. Under the heading ‘How will my appeal be considered?’ the FAQ section explained that because of the exceptional circumstances around the COVID-19 pandemic the appeal panel would conduct the appeal based on written submissions only. Parents would not be required to attend a meeting.
33. On the appeal form Ms X answered ‘NA’ to the question about whether her daughter had a disability she believed was relevant to her appeal. She also ticked ‘yes’ to say she intended to send in a more detailed letter after returning the form. The form gave the details of where to send the further information.
34. Ms X sent in a letter the same day containing the same information as on the appeal form and said she had copied it to the Appeals Team at the Council as well.
35. On 27 May the Council’s Appeals Team sent Ms X a letter by email explaining the arrangements for the appeal. The letter contained the following information:
• an explanation that the appeal panel was satisfied it was not possible to offer remote hearings for the School and had agreed it would make its decision based on the written evidence submitted;
• a link to an online folder containing the School’s ‘defence statement’ and FAQ sheet, Ms X’s appeal and any documents she had submitted with it;
• details of how to access the folder;
• the date her appeal would be heard, 16 June;
• details of the clerk and members of the appeal panel;
• a deadline of 1 June for submitting further information;
• a warning that after that date she would not be able to provide further information as the panel needed enough time to consider the evidence and Council offices were closed and could not accept paper copies.
36. On the same day the Appeals Team sent appellants a ‘courtesy email’ confirming it had sent the letter with the link to the case papers. The email invited them to contact the Appeals Team if they had any problems
37. The appeal panel considered Ms X’s appeal on 16 June. The appeal was unsuccessful. The decision letter said the panel found that the School could not take any more pupils without causing prejudice to the School. It did not consider Ms X’s reasons for wanting D to attend the School were strong or exceptional enough to outweigh the prejudice.
38. Ms X was not happy with the decision. In her complaint to the Ombudsman she said she felt the panel had not taken account of her panic attacks and her ability to take D to and from school. She said her anxiety also meant she could not allow D to go to school by herself even if she could manage it. She said in any event D also suffered from anxiety and panic attacks and could not travel on her own. In discussing the complaint with the Ombudsman as part of this investigation, Ms X also said she was not aware the appeal panel would consider her appeal on the written evidence only. Also she did not know she could provide further information for the panel to consider. She said she had another letter from her doctor which she could have submitted if she had known.

Analysis – was there fault causing injustice?

39. The Council administers the appeals on behalf of the School. The Ombudsman had considered the Council’s decision to continue to hold appeals based on written submissions only in the May/June 2022 appeals round for schools in previous complaints and not found fault. The Council considered holding appeals remotely and decided it was not possible to do so fairly and it explained how it arrived at its decision. In this investigation I have also looked at how the appeal panel dealing with appeals for the School Ms X applied for decided to follow the same approach.
40. The Council has explained that as the main round of appeals starts in March after national offer day on 1 March, it had to ensure it had made all preparations well in advance, before Christmas 2021. It has provided details of its decision-making and says it shared this with all admission authorities that had signed up for its appeals service, and with independent appeal panel members, at the start of February. Its view was that all schools should be treated the same so that no parents were disadvantaged and all appeals could be heard within the main appeals round. It said the School had multiple appeals and was therefore dealt with in the same way as all other secondary schools which had signed up to the Council’s appeals service.
41. The clerk’s notes of the hearing record that the panel was asked whether it agreed that “all appeals for the school are to be conducted as a paper-based exercise only and parents have been notified in due time and offered the ability to submit additional information to support their case. (If ‘No’ then appeal must be adjourned and reconsidered)” The panel confirmed it agreed. Based on the information I have seen I do not consider there was fault in reaching this decision.
42. Ms X says she did not know the appeal panel would consider her appeal in this way and was not aware she could provide further information after submitting the appeal form. However there is evidence, as described in paragraphs 31-36 above, that both the School and the Council provided information to Ms X on these two points in different formats and on more than one occasion. Information about the format of the appeal was on the appeal form that Ms X used and returned to the School. It was in the School’s FAQ document and the letter from the Appeals Team, with a reference to that information in the follow-up email. The letter also gave the deadline for submitting further evidence. I am satisfied from the evidence I have seen that the School and the Council on its behalf were not at fault in failing to provide information to Ms X about the appeal and evidence arrangements.
43. I do not know why Ms X was not aware she could send in further information. In any event the clerk’s notes of the hearing show she did provide a letter from D’s primary school supporting her appeal, although I do not know when she sent it in.
44. I have also considered how the appeal panel reached its decision. The clerk’s notes of the hearing and the decision letter show the panel followed the two-stage process. It considered the School’s detailed case for why it felt it could not admit any more pupils without having a detrimental effect on education for pupils at the School. The notes and the decision letter record the information the panel took into account in accepting the School’s case.
45. The panel went on to consider Ms X’s individual case at stage two. The evidence shows the panel discussed the information Ms X provided about her anxieties and the impact on getting D to school, as well as her other reasons for wanting D to attend the School. Panel members did not doubt that Ms X suffered from anxiety. However they took the view that many children would be learning to travel independently at D’s age and would most likely be travelling with other young people. They also noted that all schools offer science as part of the curriculum. Overall the panel did not find the reasons Ms X put forward for wanting a place at the School were strong enough to outweigh the prejudice that would be caused to the School by admitting her.
46. As there is evidence the panel considered Ms X’s arguments and the information she provided and explained its decision and the information it had taken into account, I do not find fault in its decision-making. Ms X says the panel did not consider D’s own anxieties but I have seen no evidence that Ms X told the panel about this. She had the opportunity to provide evidence about this if she had wished to. I cannot question the panel’s decision if it was made without fault.

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Final decision

47. I do not uphold this complaint as I have not found fault in the appeal arrangements or the appeal panel’s decision-making. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman